Appeal from the United States District Court for the Eastern District of Wisconsin. No. 81-C-1404 -- Terence T. Evans, Judge.
Before BAUER, WOOD, Circuit Judges, and CAMPBELL, Senior District Judge.*fn*
WOOD, Circuit Judge. This is an appeal from a final judgment of the district court granting petitioner-appellee's petition for a writ of habeas corpus. Based upon the following ratiocination, we affirm the district court's holding that Nash did not knowingly, intelligently, and voluntarily enter a plea of guilty to the charge of party to the crime of first degree murder.
On December 17, 1975, petitioner Nash and three other men, directed by Ira Haskins to murder Felix Winters,*fn1 took Winters by car to a predetermined location in Kenosha County, Wisconsin. Holder, the driver, stated that the car had a flat tire and pulled it to the side of the road. Holder, Garner, and Neely got out of the car. Nash remained in the car, but told Winters to get out because if he did not, both of them would be killed. Winters fled across the road where Neely shot him several times. Upon his return to Milwaukee, petitioner received some heroin and $45 for his participation in the crime.
On January 27, 1976, Nash and the others were charged with first degree murder. Garner entered into a plea agreement that included a commitment on his part to testify against the others; he pleaded guilty to second degree murder and received a ten-year sentence. The sentence was stayed, and Garner was placed on probation for seven years. Holder was tried and acquitted, presumably despite the testimony of Garner. Nash's jury trial was scheduled next; on August 24, 1976, the second day of trial, Nash withdrew his plea of not guilty and entered a guilty plea pursuant to an agreement containing the following terms: Nash was to plead guilty to first degree murder, receive a life sentence, and testify against Neely and Haskins in exchange for the prosecutor's commitment to recommend to the governor that Nash's life sentence be commuted to a term not to exceed forty years. The recommendation was to be made after Nash testified.
Both parties to the agreement fulfilled their obligations; after Nash testified at the trials, the district attorney recommended to Governor Lucey that Nash's sentence be commuted to a term of 25 years. The trial judge informed the Governor in writing that he had no objection to the commutation. Nash's petition was denied by Governor Lucey and a second petition was denied by his sucessor, Governor Schreiber.
On March 10, 1980, Nash filed with the trial court a motion for post-conviction relief pursuant to Wis. Stat. § 974.96, seeking leave to withdraw his guilty plea. Nash tendered several legal theories in support of his claim that the plea was not entered knowingly, intelligently, and voluntarily: (1) as a matter of law, the record of the guilty plea proceeding was inadequate to establish that he understood the charge he faced or the range of punishment to which he would be exposed; (2) as a matter of fact, the plea was invalid because it was tendered under false assumption that the mandatory life sentence would be commuted to a term of imprisonment not to exceed 40 years; and (3) the plea was invalid because he was denied the effective assistance of counsel. The second and third arguments were premised upon the same factual allegation: that Nash was induced to plead guilty by his attorney's misrepresentation that within one year of the date of the sentencing, the governor would commute the life sentence to a term of imprisonment not to exceed 40 years. The trial court denied the motion.
The Wiscon Court of Appeals also rejected Nash's contention that the record failed to establish his understanding of the nature of the charge and the nature of his agreement with the prosecutor. That court did, however, remand the case to the trial court for an evidentiary hearing to determine whether Nash was induced to plead guilty by counsel's misrepresentation that commutation was guaranteed. The Wisconsin Supreme Court denied Nash's petition for review of the issues that were not remanded, and the United States Supreme Court denied certiorari.
In his petition for a writ of habeas corpus, Nash asserted that, as a matter of law, the record of the guilty plea proceeding was inadequate to establish that he understood (1) the nature of the charge, or (2) the consequences of the plea, defined to include the actual value of the prosecutor's commitment to recommend commutation. Nash did not present to the federal district court the second and third grounds for relief urged in the state courts, the resolution of which depend upon a factual allegation yet to be explored in an evidentiary hearing. The district court, finding both claims meritorious, granted the writ of habeas corpus, and ordered that Nash be permitted to withdraw his plea of guilty. The judgment was stayed for 90 days to allow the State to try Nash or to dispose of the matter against him by other means. Upon the State's motion, the judgment was stayed pending resolution of this appeal.
The district court noted the Supreme Court's pronouncement in Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), that a prisoner who decides to proceed in federal court with his exhausted claims and deliberately sets aside his unexhausted claims risks dismissal of subsequent habeas corpus petitions. Having further noted the pending state court evidentiary hearing on the "somewhat related issue" of Nash's attorney's alleged misrepresentation that commutation was guaranteed, the district court deemed it appropriate to proceed to the merits of Nash's exhausted due process claims because the State had consented to such review and because the court had concluded that the writ would issue; "to withhold its issuance, under the circumstances, would serve no purpose."
Whether the State consented to review of the exhausted claims is irrelevant.Nash did not present the district court with a mixed petition.*fn2 The issue of the constitutional adequacy of the record established at the guilty plea proceeding has been fully exhausted in the state courts; Nash did not assert in his petition for a writ of habeas corpus, nor does he assert on appeal, that the guilty plea was constitutionally invalid because it was tendered under the false assumption, induced by counsel's misrepresentation, that commutation was guaranteed.
We do not believe that because the pending state evidentiary hearing may have been mooted by the district court's grant of habeas corpus relief,*fn3 the doctrine of comity has been undermined. The state court merely has been "saved the trouble of undertaking the useless exercise of ruling on unexhausted claims that are unnecessary to the disposition of ...